Applications by DM & MT Nolan Pty Ltd

[2024] FWCFB 206 Note: A copy of the zombie agreement to which this decision relates (AC3240536AC326316 AE873468 is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

Applications by DM & MT Nolan Pty Ltd

(AG2023/4353)
(AG2023/4354)

NOLSTAFF EMPLOYEE COLLECTIVE AGREEMENT 2008 (INTERSTATE)

NOLSTAFF GATTON ENTERPRISE AGREEMENT 2009

Private transport industry

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 10 APRIL 2024

Applications to extend the defaults period for the Nolstaff Employee Collective Agreement 2008 (Interstate) and the Nolstaff (Gatton) Enterprise Agreement 2009

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, DM & MT Nolan Pty Ltd has applied to extend the default periods for the Nolstaff Employee Collective Agreement 2008 (Interstate) and the Nolstaff (Gatton) Enterprise Agreement 2009 (the Agreements). Under subitem 20A(1) the Agreements were to terminate on 6 December 2023.

The applications were made, in accordance with subitem (6)(a), on the grounds that subitem (7) applied. However since making the applications, the Applicant has negotiated a replacement agreement with its employees.

The Commission has since approved the replacement agreement.[1] The purpose of the extension is to ensure the Agreements continue to apply until the replacement enterprise agreement commences. The replacement agreement commences on 7 May 2024.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreements in these circumstances.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default periods for the Agreements are extended until 6 May 2024.

The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCA 1215

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, DM & MT Nolan Pty Ltd, sought an extension of the default periods for the Nolstaff Employee Collective Agreement 2008 (Interstate) and the Nolstaff (Gatton) Enterprise Agreement 2009, which were set to terminate on 6 December 2023. The Fair Work Commission, comprising Deputy Presidents Wright, Slevin, and Grayson, was tasked with considering the applications under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The applicants sought the extension to ensure the existing agreements remained in effect until a replacement enterprise agreement, which had been negotiated and subsequently approved by the Commission, came into force on 7 May 2024.

The legal issues before the Commission involved determining whether it was reasonable to extend the default periods of the Agreements under subitem 20A(6)(b) of Schedule 3 of the Transitional Act. The applicants argued that subitem 20A(7) applied, justifying the extension. Given that the applicants had negotiated a new agreement with their employees and the Commission had approved it, the Commission found it reasonable to extend the default periods to avoid any disruption until the new agreement took effect.

In its decision, the Commission concluded that it was reasonable to extend the default periods for the Agreements until 6 May 2024 to facilitate the transition to the new enterprise agreement. The Commission issued an order extending the default periods for the Agreements and directed that these agreements be published on the Fair Work Commission’s website, in accordance with subitem 20A(10A)(c) of the Transitional Act.

The final orders of the Commission provided for the extension of the default periods for the Nolstaff Employee Collective Agreement 2008 (Interstate) and the Nolstaff (Gatton) Enterprise Agreement 2009 until 6 May 2024. These agreements were to continue in effect until the new enterprise agreement commenced on 7 May 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established